This blog post investigates the number of appeals allowed by tribunals and the reasons for this.

How many appeals are allowed by tribunals? And why do tribunals allow appeals?

To start with, here is some data. Figure 1 shows the proportion of allowed appeals concerning social security, immigration, and asylum.

Figure 2 shows the rate of allowed appeals for criminal injuries compensation (data is only available from 2010) and asylum support appeals.

Figure 3 shows the proportion of allowed Employment and Support Allowance (ESA) appeals.

Figure 4 pulls this data altogether.

Clearly, rates of allowed appeals vary between different tribunals and also over time. However, as figure 4 shows, the proportions of allowed appeals for these five appeal types cluster around 30-47%. The lowest rate of allowed appeals in a single year was 20%, but the average rate of allowed appeals is nearer double this. Over recent years, on average, 40% of social security and immigration appeals and 30% of asylum appeals have been allowed. The proportion of allowed ESA appeals – recently, almost 60% – has overtaken that of dismissed appeals (figure 3). Put another way, across these tribunals, around two in five appeals succeed. For ESA appeals, it is nearer three in five.

The number of appeals allowed has been considerable. In 2013/14, there were 308,050 ESA appeals. Thousands of people have been able to overturn initial decisions because they went to a tribunal. These decisions concerned fundamentally important matters, such as: whether someone was entitled to benefits; an individual’s immigration status in the UK; and whether someone was entitled to asylum because she would be at risk of persecution or torture if returned to her country of origin.

To what extent are allowed appeal rates indicative of the quality of initial decision-making more broadly?

The answer to this is unclear, and perhaps unknowable. The fact that, say, 40% of appeals are allowed does not necessarily mean that 40% of all initial decisions are wrong. Appeals are usually only against initial negative decisions and only a select proportion of these decisions are appealed. Public bodies have internal review processes that will (hopefully) pick up many decisions. In other words, cases that end up in tribunals have already been through a filtering process that involves claimants themselves, possibly their advisers (if any), and the relevant public body (through an internal review process). The headline figure of allowed appeals might be misleading if only a small proportion of cases proceed to an appeal.

On the other hand, appeals are only the tip of the iceberg. The fact many people do not challenge initial decisions raises questions about their chances of success. How many individuals who do not appeal would succeed if they did so? Would the rates of allowed appeals increase, decrease, or remain the same? It is impossible to know for certain. But it seems reasonable to assume that many such people could well succeed if they took their case before a tribunal.

Many people who do not challenge decisions often do so for reasons unrelated to the quality of initial decisions or their chances of success. These reasons include: a lack of advice; obstacles to accessing tribunals; and a lack of confidence. It seems reasonable to assume that there are many unchallenged decisions that could be successfully challenged. The whole basis of administrative law and administrative justice rests upon whether people decide to challenge negative decisions.

A further point is this: if public bodies have their own internal review processes before appeals, then why do so many appeals – 40% – succeed despite the operation of such internal review processes? It might be thought that internal review would clear out the obviously wrong decisions and pass those more borderline cases in which there is something to argue about into tribunals. Nonetheless, 40% seems to be quite a significant proportion.

For these reasons, it seems difficult to know whether the overall success rate is a good indicator of the quality of initial decisions. Nonetheless, success rates do raise an important area for further inquiry.

This leads us to the second question: why do tribunal allow appeals?

This is a fundamental issue of administrative justice, but there is little systematic understanding as to why tribunals allow appeals. A number of possible explanations can be advanced. Appeals might be allowed because primary decisions are erroneous. Alternatively, others factors may enter into the tribunal decision-making process; the outcome of appeals may be affected by considerations unrelated to the quality of initial decisions. For instance, new evidence may been submitted and considered for the first time at the appeal stage. Tribunal procedures can also affect substantive outcomes (note the difference in success rates between oral and paper appeals). There are also likely to be factors particular to specific areas that influence outcomes. For instance, the number of appeals in a particular area could increase because the Upper Tribunal has decided a lead case that sets a precedent for many appeals.

One particular issue is the role of initial decision-makers and tribunals in assessing the facts. Previous research has highlighted the importance of credibility in appeal outcomes. For instance, people overseas wanting to visit their relatives in the UK used to have a right of appeal against the refusal of entry clearance. These family visitor appeals were decided by immigration tribunals largely on the ground of whether or not the appellant and her sponsor were credible. Similarly, asylum appeals largely turn upon the credibility of their individual appellant’s story. Similar issues arise in the context of social security appeals.

The vast majority of first-instance appeals turn on issues of fact not law. Facts can be simple and objectively verifiable. They can also be complex and require evaluative assessment of imperfect and incomplete evidence through imperfect procedures. Credibility falls into the latter category. It often involves evaluation and discretion.

There may be no single objectively correct means of assessing credibility. On this ground, it might be thought that primary decision-makers have little to learn from tribunals. Credibility is simply an issue on which different people may arrive at different conclusions. There may be no single correct answer. On the other hand, initial decision-makers have much to learn from tribunals in this respect about how they go about assessing credibility.

As regards the submission of new evidence for the first time at the appeal stage, this may be because an appellant withheld such evidence. But it might also be because it only comes to light at an appeal hearing. Tribunal judges can adopt an investigative approach to collect new evidence. A tribunal hearing will usually be the first occasion in which the appellant has come face to face with the decision-maker.

There may also be aspects of the administrative decision-making process that affect the evidence considered. For instance, the Department for Work and Pensions (DWP) contracts out health and disability assessments. These assessments are one of the most important pieces of evidence to making many benefit decisions. Criticisms over the quality of these healthcare assessments were recently flagged up by the House of Commons Public Accounts Committee. Claimants will often seek further evidence with which to take issue with the health care assessment. However, as a matter of administrative practice, health care assessments are not disclosed to claimants until they have lodged an appeal. This in effect pushes claimants to appeal and to seek out further evidence, which is only considered for the first time at the appeal stage. The process seems to have been designed to drive claimant behaviour in a way which is counter-intuitive to how an efficient process should operate.

The debate around tribunals over recent years has focused upon increased restrictions upon access to justice through reduced legal aid, increased fees, mandatory review processes, and the abolition of some appeal rights. This is an important area of debate and concern.

There is also an important debate in relation to the rate of allowed appeals. This is something that public bodies should monitor and oversee. An upsurge in allowed appeals calls for investigation to determine likely causes and to devise solutions. If public bodies are signed up to the ‘right first time’ agenda and better decision-making, then there needs to be a closer focus upon allowed appeals. Looking to the future, there also needs to be closer attention paid to internal review procedures.

ANNOUNCEMENT:

A joint University of Manchester and UK Administrative Justice Institute (UKAJI) seminar

Initial Decision Making, Internal Review and Administrative Justice

11th May 2016, 12pm – 4.40pm, followed by a tea/coffee reception

University of Manchester

The aim of this research seminar is to explore what we know and what we need to know about current reform initiatives relating to internal review of decision-making across government.

The seminar brings together researchers and practitioners with those involved in central and local government on initial decision-making and internal review, including mandatory reconsideration, to give an update on what government departments are doing, to discuss and share perspectives and to identify areas of priority for future research.

There are some remaining places available, though places are limited. If you would like to attend, then please contact the Law & Human Rights Events Team lawhrcevents@essex.ac.uk.